UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOSE MEDINA ESCOBAR, Plaintiff-Appellant,

v. EDWARD MORA; RENEE OLIVETT; HARLAN WOOLFOLK; WILLIAM COLTON; FRANK HAMULA; MARK MATTHEWS ; J. BROWN; J. SIMS; E. DICLUSION, Defendants-Appellees, and L. REID; K. COOPER; E. CELLA; T. HAUCKS; E. PERRY; D. GALLAGHER; SGT. BINDER; C/O VALDEZ; A. LUNA; R. WENCL; J. WERMERS; C/O JACKSON; L. MONTOYA; LT. PAULINO; LT. JOHN DOW; C/O SANTOS; C/O RAYMOND; SGT. D. SMITH; C/O WILLIAMS; C/O BALL; LT. CONWAY; DESANTOS; CTP MIKLICH; SGT. OATES; DR. CRANEY; NURSE RITA; C/O MARTIN; SGT. GONZALES, Defendants. No. 11-1422 (D.C. No. 1:06-CV-01222-CMA-KLM) (D. Colo.) FILED United States Court of Appeals Tenth Circuit 

### September 10, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - ORDER AND JUDGMENT *

Before HOLMES , Circuit Judge, BRORBY , Senior Circuit Judge, and EBEL , Circuit Judge.

Plaintiff Jose Medina Escobar brou ght this civil right s action challenging various aspects of his conditions of confin ement at the Colorado State Penitentiary (CSP) in Canon City, Colorado. He now ap peals from the entry of judgment in favor of defendants, specifically with respect to two claims (Claims One and Seven). We affirm for the reasons explained below, which la rgely track those of th e district court. I. RELEVANT DISTRICT COURT DECISIONS This case has a fairly complicated history, much of which is immaterial to our review of the district court’ s disposition of Claims One and Seven. As relevant here, Claim One encompassed two Eighth Amendmen t allegations: (a) an incident of excessive force in January 2004, involving defendants Brown, Sims, and Diclusion, 1

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.
1 In his appellate brief, Mr. Escoba r also refers to defendants Raymond and Gonzales, but they were not involved in Cl aim One. In any event, the excessive force claim (Claim Six) against defendant Raymond is subject to the same legal deficiency as Claim One and our dispositi on here would apply to both. Defendant (continued)- 3 - and (b) a fifteen-month period in which de fendant Mora, with the acquiescence and encouragement of defendant O livett, spat or pretended to spit into Mr. Escobar’s breakfast and lunch, prompti ng him to forgo eating these me als and ultimately to lose some thirty pounds. On summary judgment, the district court dismissed the former aspect of Claim One without prejudice fo r failure to exhaus t prison remedies. See 42 U.S.C. § 1997e(a). It dism issed the latter aspect with prejudice for failure to state a claim for relief under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(i). The district court noted that the scope of Claim One was arguably expanded by allegations included in the final pretrial order that defendants Mora and Olivett had filed false disciplinary reports against Mr. Escobar and ha d hindered his access to the courts by depriving him of legal materials. The dist rict court dismissed these additional matters for failur e to state a claim. The focus of Claim Seven was an allege d incident of excessive force in May 2007, involving CSP officers Matthews, Colton, Hamula, and Woolfolk. The district court dismissed this claim without prejudice for failure to exhaust prison remedies. In the final pretrial order Mr. Escobar al so alleged that thes e defendants had filed false disciplinary reports against him and had denied him medica l attention. The district court dismisse d both of these additional matters for failure to state a claim, though it specified that the dismissal of the latter was w ithout prejudice.

Gonzales was dismissed from the case for l ack of service in an unchallenged minute order unrelated to the subs tance of this appeal.- 4 - II. REVIEW OF DISTRICT COURT DECISIONS We review the above rulings de novo. Howard v. Waide , 534 F.3d 1227, 1242-43 (10th Cir. 2008) (dismissal for failure to state a claim); Fields v. Okla. State Penitentiary , 511 F.3d 1109, 1112 (10th Cir. 2007) (summary judgment based on failure to exhaust prison remedi es). At the outset, we not e that it was entirely proper for the district court to resolve the exha usted claims on the me rits while dismissing other claims for failure to exhaust. See Gallagher v. Shelton , 587 F.3d 1063, 1068 (10th Cir. 2009) (no ting Supreme Court’s rejection of “total exhaustion” rule in Jones v. Bock , 549 U.S. 199, 219- 21 (2007)). A. Failure to Exhaust In an order issued December 16, 201 0, the district court dismissed the excessive force claim against defendants Br own, Sims, and Diclusion for failure to exhaust prison remedies. See Escobar v. Brown , No. 06-cv-01222, 2010 WL 5230874, at *3-*4 (D. Colo. Dec. 16, 2010) . Mr. Escobar does not dispute that he failed to exhaust this claim, but insists his failure to complete the prison grievance procedure should be excused fo r various reasons. We agre e with the district court that none of these excu ses are persuasive. Mr. Escobar argues in general terms that filing restrictions (imposed for his abuse of the grievance procedure) lim iting him to one grie vance per month had impeded his ability to exhaust. But he was able to file grievan ces over other matters while the restrictions were in effect and he does not e xplain how the restrictions- 5 - prevented him from filing a grievance over th e particular allegations at issue here. Similarly, his conclusory complaints about not being provi ded proper grievance forms and having grievances confiscated or lost in th e mail are belied by his own ample grievance record and in any event are not tied by specific factual allegations to particular instances such as the one at issue here. He al so generally complains that he faced threats of retaliati on for using the grievance pr ocess, but again, as the district court noted, his conclusory allega tions are belied by his own practice (indeed, on appeal he specifically stat es that the alleged retaliat ory threats did not in fact dissuade him from pursuing prison remedies). The onus was on Mr . Escobar to show that the alleged impediments to exhaustion existed and did in fact prevent or deter him from using the prison grievance pr ocedure for the unexh austed claims. Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011). He failed to do so and the district court therefore properly enforced the exhaustion requirement. In its order issued August 22, 2011, th e district court applied the exhaustion doctrine to dismiss the excessive force al legations included in Claim Seven against defendants Matthews, Colton, Hamula, and Woolfolk. See Escobar v. Mora , No. 06-cv-01222, 2011 WL 3665391, at *6- *7 (D. Colo. Aug. 22, 2011). The court held that although Mr. Escobar had not comp letely bypassed the grievance procedure, he had not properly comple ted it, which is equally fatal under § 1997e(a), see Thomas v. Parker , 609 F.3d 1114, 1118 (10th Cir. 2010), cert. denied , 131 S. Ct. 1691 (2011). The court noted that instead of initiating a grievance following the- 6 - alleged incident, he tacked it onto a prior gr ievance that was then at the second step of the three-step process, in violation of a prison regulation that specifically prohibits adding new claims to grie vances as they progre ss through the process, see R. Vol. 1 at 1139 (setting out AR 850-04- IV-E(2)). The district c ourt also noted that he belatedly filed another grieva nce over the incident but fail ed to pursue that through the third step of the process. Again, Mr . Escobar does not dis pute these deviations from proper grievance procedure, but relies on the same excuses, undercut by the same deficiencies, discussed above in conn ection with the excess ive force allegations included in Claim One. 1 We therefore affirm the dist rict court’s dism issal of this claim as well.
B. Failure to State a Claim 1. Allegations of spitting into plaintiff’s food

a. Constitutional violation The district court dismissed plaintif f’s claim against de fendants Mora and Olivett because in its view th eir spitting into his food simply did not rise to the level of an Eighth Amendment violation. The court stated: While the notion of eating food that has been spat into does make one cringe, the case law renders clear that Plaintiff’s bare allegations do

1 He also complains that prison offici als did not timely re solve the step-two grievance in which he initially sought redres s for this claim. As ide from the fact that his bypass of the first step was improper in any event, we note that a prison delay in responding to a grievance would not excuse a prisoner’s inaction, since regulations specify that a prisoner may pr oceed to the next step once the deadline for the prison’s response expires, s ee R. Vol. 1 at 1142 (setti ng out AR 850-04-IV-I(1)(d)).- 7 - not rise to the level of a constitutional violation. Even if Plaintiff’s food was spat into, Plaintiff has not al leged and cannot prove that such conduct contaminated the food, rende red it poisonous, or that such food made Plaintiff ill. Escobar , 2011 WL 3665391, at *5. 2 In essence, the dist rict court relied on the distinction between merely unpleasant pris on conditions that ar e not actionable and unhealthy or dangerous prison conditions that are actionable, as drawn in such cases

as DeSpain v. Uphoff , 264 F.3d 965 (10th Cir. 2001): The first requirement [for an Eighth Amendment claim based on conditions of confinement] is that th e conditions complained of must be “sufficiently serious” to implicate cons titutional rights. . . . In order to satisfy this prong of the Farmer test, a prisoner must show that conditions were more than uncomfortab le, and instead rose to the level of “conditions posing a substantial ri sk of serious harm” to inmate health or safety. Id. at 973 (quoting Farmer v. Brennan , 511 U.S. 825, 834 (1994)). As the district court noted, there is no allegation that the spitting carried any inhe rent or particular

2 At one point the district court al so suggested that defendants’ conduct reflected mere negligence not actiona ble under the Eighth Amendment. See Escobar , 2011 WL 3665391, at *5. But Mr. Escobar alleged defe ndants were “malicious and sadistic in their effort to starve [him] and cause him mental and psychological distress and anguish.” R. Vol. 1 at 50. Given the nature of the alleged misconduct, we cannot say this allegation of a deliberat e state of mind is implausible. If the intended result of defendants’ conduct objectively ro se to the level of a constitutional injury, dismissal would not be warranted on the ground that they subjectively did not act with the deliberate indi fference required for an Eighth Amendment violation, see generally Thompson v. Gibson , 289 F.3d 1218, 1222 (10t h Cir. 2002) (discussing state of mind requirement for Eighth Amendment claim of food deprivation). Accordingly, our focus is on the nature a nd extent of the harm intentionally caused by defendants.- 8 - danger to plaintiff’s health or safety, nor is there any allegation of consequent illness or poisoning. Mr. Escobar did allege, however, that he had suffered “mental and psychological distress and a nguish” and had lost thirty pounds as a result of defendants’ conduct. R. Vol. 1 at 50; see also id. at 62 (request fo r relief seeking damages for “severe mental a nd emotional distress and a nguish”). Cognizable injury under the Eighth Amendment in cludes psychological harm. See Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803, 810 (10th Cir. 1999); Northington v. Jackson , 973 F.2d 1518, 1524 (10t h Cir. 1992); see also Thomas v. Bryant , 614 F.3d 1288, 1312 (11th Cir. 2010) (collecting cases and emphasizing in this regard the “concepts of dignity, civilized standards, humanity and decen cy embodied in the Eighth Amendment” (internal quotation marks omitte d)). Thus, prison conditions or practices like those alleged here that degrade, humiliate, or taunt inmates ca n give rise to actionable claims under the Eighth Amendment if they are suffici ently egregious. See Perkins , 165 F.3d at 811 (requiring inmate to wear face mask branding him an HIV carrier, allegedly to humiliate and punish him whenever he left his cell, could give rise to Eighth Amendment claim); Northington , 973 F.2d at 1524 (placing revolver to inmate’s head and threatening to shoot c ould give rise to Ei ghth Amendment claim); see also Hope v. Pelzer , 536 U.S. 730, 738 (2002) (noting “taunting” and “humiliation” as circumstan ces contributing to Court’ s holding that handcuffing inmate to hitching post without access to bathroom facilities “violated the basic- 9 - concept underlying the Eighth Amendment, whic h is nothing less than the dignity of man” (internal quotati on marks omitted)). Moreover, plaintiff’s thirty-pound we ight loss complemented his alleged mental distress, giving an objective physical dimension to his injury. 3 See generally Thompson v. Gibson , 289 F.3d 1218, 1222 (10th Ci r. 2002) (recognizing that substantial food deprivations are actionable). Not all weight loss reflects an unconstitutional deprivation, of course, an d some weight loss ma y permissibly arise from the enforcement of penol ogically legitimate rules, see, e.g. , Freeman v. Berge , 441 F.3d 543, 544-45, 547 (7th Cir. 2006) (noting “there is a difference between using food deprivation as a punishment and establishing a reasonable condition to the receipt of food,” and upholding enforcemen t of rules barring delivery of food to cell for health or safety reasons). However, the conduct allege d here served no legitimate penological interest at all. We have repeatedly held that such an absence of a legitimate penological interest lends support to an asse rted constitutional violation. See, e.g. , Mata v. Saiz , 427 F.3d 745, 758 (10th Cir. 2005) (noting unwarranted delay in providing medical care did not serve any legiti mate penological purpose); Smith v. Cochran , 339 F.3d 1205, 1213 (10th Cir. 2003) (noting “se xual abuse of a prisoner by a correctional officer has no legitimate penological purpos e” (internal quotation marks omitted));

3 We are mindful that some physical injury must be present to make an inmate’s claim for psychological injury actionable. See 42 U.S.C. § 1997e(e).- 10 - DeSpain , 264 F.3d at 978 (noting use of pepper spray as a “practical joke” without any legitimate penological purpose reflected malicious and sadistic use of force). The only purpose of spitting into plaintiff’s meals would be to taunt and degrade him, leaving him a Hobson’s choice between ac cepting defiled food or going without the meal. Under these circumstances, we cannot dismiss the significance of plaintiff’s weight loss, as the district court did, by characterizing it as “a result of Plaintiff’s own choice to not eat his breakfasts.” Escobar , 2011 WL 3665391, at *5. Under the unique circumstance s of this case, we cannot agree with the district court’s reasoning and its ultimate conclusi on that Mr. Escobar’s allegations do not evince an Eighth Amendment violation. The district court’s rati onale for dismissing Mr. Escobar’s claim essentially comes down to this categori cal assertion: although it might render food disgusting or offensive to the sensibiliti es, the practice of spitting into inmate food is so intrinsically innocu ous that spitting into two of an inmate’s three daily meals for a period of fifteen mont hs, does not, as a matte r of law, rise to the level of an Eighth Amendment violation absent allegations of bacterial, viral, parasitic, or other like contamination, even if the spitting causes the inmate to forgo eating (resulting in substa ntial weight loss). We acknowledge that there is no dir ectly relevant Supreme Court or Tenth Circuit authority to guide our resolution of this question. And the case law from other jurisdictions that deals directly wi th spitting into inmate food is generally- 11 - unpublished and inconclusive. 4 However, this dearth of precedent notwithstanding, given the totality of the circumstances disc ussed above, we are unwilling to say that the conduct alleged here failed to stat e a claim for violation of the Eighth Amendment. We also underscore the part icular importance to our holding of the extensive duration of the a lleged wrongful conduct. Mr . Escobar does not allege a single isolated incident of spitting into hi s food, however repreh ensible or disgusting that might be. As alleged, the wrongful practice of spitting into his food—indeed, spitting daily into two of his three meals—lasted for fifteen months. Furthermore, of like significance to us is the fact that (as alleged) defe ndants Mora and Olivett had absolutely no legitimate penological purpose for engaging in their conduct; their aim was to taunt or degrade Mr. Escobar. And, as a consequen ce, they inflicted psychological injury upon him. In sum, based upon the totality of the unique circumstances presented here, we conclude that the district court erred in c oncluding that Mr. Escobar failed to state a claim for violation of his Eight h Amendment rights. Yet, as we assess this case, that

4 Compare, for example, Conquest v. Layton , 2011 WL 6258467, at *3 n.5 (D. Md. Dec. 13, 2011) (holding that spitting into inmate’s food did not rise to level of constitutional violation); Jones v. Jensen , 2011 WL 2938464, at *3 (W.D. Mich. July 19, 2011) (same); Davis v. Putnam , 2011 WL 1298117, *2 (E.D. Cal. March 31, 2011) (same); Bee v. Krupp , 2009 WL 2981910, at *3 (S.D.N.Y. Sept. 15, 2009) (same) with Thompson v. Mich. Dep’t of Corr. , 2000 WL 1597844, at *2 (6th Cir. Oct. 20, 2000) (holding that spitting into inmate’s food did rise to level of constitutional violation); Williams v. Klem , 2011 WL 2970303, at *11 n.2 (M.D. Pa. May 10, 2011) (same), adopted by district court , 2011 WL 2960869 (M.D. Pa. July 20, 2011).- 12 - is not the end of the matter. We may affirm the district court’s dismissal on any legal basis supported in the record, Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1135 n.1 (10th Cir. 2000), and we do so on the basi s of the qualified immunity defense that defendants asserted in their answer, see Gomes v. Wood , 451 F.3d 1122, 1124, 1133 (10th Cir. 2006). 5 b. Qualified immunity “The doctrine of qualified immunity protects government officials from liability for civil damages in sofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 6
Clark v. Wilson , 625 F.3d 686, 690 (10t h Cir. 2010) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009) (further quotation omitted)), cert. denied , 131 S. Ct. 2884 (May 2, 2011). “Whether [the plaintiff] has alleged a viola tion of his clearly established constitutional rights to overcom e [defendants’] defense of qualified immunity is an issue of law,” Brown v. Montoya , 662 F.3d 1152, 1162 (10th Cir. 2011), and as such is a proper subject for de novo determination on appeal, see Lewis v. Tripp , 604 F.3d 1221, 1226 (10th Cir. 2010). “Ordinarily, for the law to be clearly

5 The parties must also have had a fa ir opportunity to address the defense, Gomes , 451 F.3d at 1133, which they did here , in connection with a motion pursued earlier in the proceedings by defendants. The procedural circumstances of that motion, which raise a waiver question, ar e discussed later in this decision.

6 Any request for equitable relief rega rding the spitting clai m was mooted years ago by the removal of defendant Mora from any connection with Mr. Escobar’s daily food service.- 13 - established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority fro m other courts must have found the law to be as the plaintiff maintains.” Clark , 625 F.3d at 690 (inter nal quotation marks omitted). But in certain circumstances “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” Id. (quoting Hope v. Pelzer , 536 U.S. 730, 741 (2002)). Ultimately, the “relevant inquiry [is] whether the law put officials on fair noti ce that the described conduct was unconstitutional.” Id. (internal quotation marks omitted). As evident from our discussion of the me rits, there are no controlling decisions on point from the Supreme Court or from this circuit, nor is there a clear weight of authority in other courts. And while we have extrapolated fro m general principles here to hold that Mr. Escobar stated an Eighth Amendment claim, we cannot say that the analytical bridge from th e former principles to the latter holding impressed itself upon us with the clarity necessary to concl ude that defendants were on fair notice that their conduct rose to the le vel of a constitutional violati on. We therefore hold that they have a valid qualified immunity defe nse. The only question that remains is whether they waived that defense duri ng earlier proceedings in the case.

c. Firm waiver rule The district court’s ruling that Mr. Esc obar’s allegations of spitting failed to state an Eighth Amendment claim, see Escobar , 2011 WL 3665391, at *5, actually- 14 - reflected a reconsideration and change of view on the matter . Earlier in the case, the district court denied a moti on asserting qualified immunity as to this claim, holding that Mr. Escobar had stated a cognizable constitutional claim and that the claim was based on clearly established law. See Escobar v. Reid , 668 F. Supp. 2d 1260, 1297 (D. Colo. 2009). More to the point here , the district court denied the motion by adopting a magistrate judge ’s recommendation to which defendants had not objected, which raises the question whether this circ uit’s “firm waiver ru le” bars a favorable ruling for defendants on any of these matters now, see generally Casanova v. Ulibarri , 595 F.3d 1120, 1123 (10th Cir. 2010) (discussing firm waiver rule under which an unexcused failure to object to a magistrate judge recommendation waives appellate review of issues resolved adversely by the recommendation). We begin by noting that the district cour t’s consideration of the matter was not barred by the firm waiver rule. Regardless of the lack of objection, a district court may review, de novo if it wishes, any as pect of a recommendation made by the magistrate judge. Thomas v. Arn , 474 U.S. 140, 154 (1985); Summers v. Utah , 927 F.2d 1165, 1167 (10th Cir. 1991). And if the district court elects to consider an unobjected-to issue and rejects the magi strate judge’s reco mmendation, it would make no sense to invoke the firm waiver rule—which ordinarily applies to recommendations adopted by the distri ct court, not those it rejects. See 12 Charles Alan Wright et al., Fed. Prac. & Proc. §3070.1 at 372 (2d ed. 1997) (noting that “appellate review is fully available” when district court diverges from- 15 - recommendation of magistrate judge). 7 To hold otherwise would be to embrace the facially untenable view that a district c ourt’s dispositive ruling could not be defended on appeal by the very party whom it favored. But there is a caveat. We have held that the firm waiver rule does apply to bar an appellee from defending a favorable result on the basis of a distinct alternative rationale that the district court did not use and that the appellee waived through a failure to object. See Schrader v. Fred A. Ray, M.D., P.C. , 296 F.3d 968, 975 (10th Cir. 2002). 8 Here, the district court dismissed Mr. Escobar’s spitting cl aim for failure to allege a constitutional violation, contra ry to the magistra te judge’s earlier recommendation. 9 A straightforward affirmance on the basis of that holding would clearly not be barred by the firm waiver rule (though we rejected th is course above).

7 By the same token, we apply the firm waiver rule even when the district court has elected to review an unobjected-to i ssue de novo if it u ltimately adopts the magistrate judge’s recomme ndation and the non-objecti ng losing party seeks to challenge that decision on appeal. See Vega v. Suthers , 195 F.3d 573, 579-580 (10th Cir. 1999).
8 In Schrader , a Rehabilitation Act defendant wh ich had been granted summary judgment on the basis that it lacked the fi fteen employees require d for application of the Act sought to defend the judgment on the alternative basis that the plaintiff was not an intended beneficiary under the Act— an entirely distinct argument that the district court itself had deemed waived. See Schrader , 296 F.3d at 970, 975.
9 The fact that the distri ct court reached this conclu sion on a reconsideration of the matter is of no moment. “A court’ s disposition of a single claim in a suit involving multiple claims is subject to reconsideration un til the entry of judgment on all of the claims, absent e xplicit direction for the en try of judgment on the single claim.” First Am. Kickapoo Operations, L.L. C. v. Multimedia Games, Inc. , 412 F.3d 1166, 1170 (10th Cir. 2005).- 16 - Logically, we also do not believe that the firm waiver rule should bar an affirmance on the integrally related—as opposed to di stinct—rationale of qualified immunity. The qualified immunity defense involves a tw o-step inquiry, the fi rst step of which coincides with the di strict court’s dis positive ruling here— viz. , its determination that Mr. Escobar did not adequately pl ead a constitutional violation. See Clark , 625 F.3d at 690. In other words, the first step is encompa ssed in, and bears a logical connection to, the overarching qualified imm unity inquiry. We of course recognize that not infrequently this step need not be reached to determin e the applicability of the qualified immunity defense. See, e.g. , Toevs v. Reid , 685 F.3d 903, 910 (10th Cir. 2012). However, when it is reached, a ruling that no constitu tional violation has been demonstrated necessarily obviates the need for a findi ng at the second step that no clearly established (constitu tional) violation occurred. Thus, when the district court ultimatel y held that Mr. Escobar failed to state an Eighth Amendment violation, it fully abju red, as a matter of law and logic, its prior interlocutory ruling adopting the ma gistrate judge’s r ecommendation that defendants’ qualified immunity defense should be rejected. We therefore consider an affirmance on the basis of quali fied immunity to be within the effective scope of the district court’s ultimate c onstitutional rationale of de cision, and not a distinct alternative rationale of the sort barred by our firm waiver rule. See Schrader , 296 F.3d at 975. We also note that this treatment of the matter is bolstered by its consistency with our cases recognizing the unique natu re of qualified immunity,- 17 - which serves as an immunity from the bur dens of litigation rather than a mere defense to liability, Serna v. Colo. Dep’t of Corr. , 455 F.3d 1146, 1150 (10th Cir. 2006), and as such should remain available to the defendant at multiple stages of the

case, see, e.g. , Cassady v. Goering , 567 F.3d 628, 634 (10th Cir. 2009); Weise v. Casper , 507 F.3d 1260, 1265 (10th Cir. 2007). 2. Denial of access to courts (inter ference with legal materials) Mr. Escobar complains in conclusory terms that defendants destroyed, confiscated, and/or disordered his legal materials so as to interfere with his access to the courts. The district c ourt summarily rejected this claim for various reasons, one of which will suffice for our pur poses here. In order to st ate a claim for denial of access to the courts, a pris oner must demonstrate actual injury from the alleged interference by presenting fact s that show how he was impe ded in his effort to pursue a particular nonfrivolous legal claim. See, e.g. , Gee v. Pacheco , 627 F.3d 1178, 1191 (10th Cir. 2010) (apply ing actual-injury requirement recognized in Lewis v. Casey , 518 U.S. 343, 351-55 (1996)); Peterson v. Shanks , 149 F.3d 1140, 1145 (10th Cir. 1998) (same). As the distri ct court noted, the broad al legations that Mr. Escobar added to the final pretrial order in this re gard did not include any such facts. 3. Denial of medical care The district court dismi ssed as conclusory Mr. Es cobar’s claim that a CSP physician failed to pr ovide him adequate medical atte ntion and that defendants were responsible for the omission(s). The distri ct court noted that Mr. Escobar had not- 18 - identified what medical treatm ent he should have been gi ven but was denied through defendants’ actions. On appeal, Mr. Es cobar complains (1) that the physician examined him briefly when his face was swollen and his ear was bleeding after the alleged incident of excessive force in Ma y 2007, and returned him to defendants upon finding “there’s nothing broken”; (2) that he has nerve dama ge in his hands for which “Medical has informed him th ere’s nothing that can be done”; and (3) that he “suffers from severe back pain, head aches, loss of memo ry, emotional inst ability reactions, food and sleep deprivations.” Aplt. Openi ng Br. at 3-b and 3-c. These allegations would not cure the deficiencies in his claim. The first does not identify any particular omission in treatment; the sec ond merely reflects a medical judgment that on its face does not constitute deliberate i ndifference (nor does it indicate any role played by defendants in the de nial of treatment); and the third is merely a recitation of complaints without any indication that medical attention was sought and denied for them (or that, if it was, defendants ha d anything to do with the denial). 4. False disciplinary reports Mr. Escobar also claimed that defenda nts filed false disciplinary reports against him. Again, the allega tions added to the final pretri al report in this regard are utterly conclusory. He did not even iden tify the reports, let alone specify in what respects they were false and how any falsifications were ma terial to their resolution. “Conclusory allegations withou t supporting factual averments are insufficient to state a claim on which relie f can be based.” Cory v. Allstate Ins. , 583 F.3d 1240, 1244- 19 - (10th Cir. 2009) (interna l quotation marks omitted); see, e.g. , Cardoso v. Calbone , 490 F.3d 1194, 1199 (10th Cir. 2007) (holding broad alle gation of conspiracy to fabricate prison misconduct char ge failed to state claim fo r relief). And, as the district court noted, absent de ficiencies in the due proces s afforded with respect to prison disciplinary charges, “mere allegati ons of falsified evidence or misconduct reports,” without more, do not state a claim. Smith v. Mensinger , 293 F.3d 641, 654 (3d Cir. 2002); see also McPherson v. McBride , 188 F.3d 784, 787 (7th Cir. 1999); Sprouse v. Babcock , 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout , 808 F.2d 949, 952-53 (2d Cir. 1986); Johnson-Bey v. Ray , 38 F. App’x 507, 510 (10th Cir. 2002); Northington v. McGoff , No. 91-1252, 1992 WL 149918, at *4 (10th Cir. June 25, 1992) (unpub.). While Mr. Escobar at tributed some other misconduct alleged in his pleadings to retaliatory mo tives, his allegations in th e final pretrial order about false disciplinary reports do not invoke this additional consideration. III. CONCLUSION For the above reasons, we conclude that the district court properly dismissed the claims that are the subj ect of this appeal. We not e that Mr. Escobar’s pro se briefing is somewhat digressi ve and unfocussed. Although we have reviewed all of his arguments, we have endeavored to addr ess explicitly only thos e points material to our disposition of the issues on appeal.- 20 - The judgment of the district court is AFFIRMED. Mr. Escobar’s motion for appointment of counsel is DENIED as moot.

Entered for the Court

Jerome A. Holmes Circuit Judge